United States v. Gary L. Jones, Also Known as Black

195 F.3d 379, 1999 U.S. App. LEXIS 27893, 1999 WL 977851
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 28, 1999
Docket98-1916
StatusPublished
Cited by36 cases

This text of 195 F.3d 379 (United States v. Gary L. Jones, Also Known as Black) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gary L. Jones, Also Known as Black, 195 F.3d 379, 1999 U.S. App. LEXIS 27893, 1999 WL 977851 (8th Cir. 1999).

Opinions

FAGG, Circuit Judge.

Gary L. Jones appeals his conviction and sentence for conspiracy to possess with intent to distribute marijuana, phencycli-dine (PCP), cocaine, and cocaine base. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (1994). We affirm.

In early 1988, Kansas City police and the Federal Bureau of Investigation began examining a large-scale drug operation involving members of the Barrett family and their associates. In September 1989, an undercover police officer went to a Barrett drug house and bought 13.92 grams of crack cocaine from Jones. The next month, Jones was arrested with Terry and Frank Barrett outside another Barrett drug house, where police found $135,632 in cash, a handgun, a shotgun, a scale, and a small amount of crack. In the next few years, police recovered additional drugs, money, and firearms from the Barretts’ drug houses. In late 1996, the government charged seven members of the Barrett family and five others with conspiracy to possess with intent to distribute illegal drugs. Besides controlled buys, warrant searches, and wiretaps, cooperating witnesses confirmed Jones was a regular associate of the Barretts and was involved in their drug trafficking operation for several years. Jones was arrested on the conspiracy charge in March 1997, and a jury convicted him a few months later.

For his sole challenge to his conviction, Jones contends the prosecution’s use of peremptory strikes to remove two African Americans from the jury panel was intentionally discriminatory. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We analyze Batson challenges in three steps. First, the defendant must make a prima facie showing that the prosecution exercised its peremptory challenges based on race. See id. at 96-97, 106 S.Ct. 1712. After this showing is made, the burden shifts to the prosecution to give a racially neutral explanation for the challenge. See id. at 97, 106 S.Ct. 1712. Last, the trial court must decide whether the defendant has established purposeful discrimination. See id. at 98, 106 S.Ct. 1712.

Jones asserts the prosecution’s explanations for the strikes were not race-neutral. We disagree. The prosecution struck one venireperson because she was a social worker, and another because he nodded to Jones’s brother in the hallway outside the courtroom. These are both race neutral explanations for the peremptory strikes. See United States v. Davis, 154 F.3d 772, 781 (8th Cir.1998) (peremptory strike of guidance/chemical dependency counselor was race-neutral), cert. denied, — U.S. -, -, -, 119 S.Ct. 1072, 1078, 1090, 143 L.Ed.2d 75 (1999); United States v. Martinez, 168 F.3d 1043, 1047 (8th Cir.1999) (peremptory strike of venireperson based on body position and eye contact was race-neutral).

Jones also asserts the district court did not give him an opportunity to carry his burden to prove the prosecutor’s strikes were purposefully discriminatory. According to Jones, he was not permitted to argue or present evidence relating to the persuasiveness of the prosecutor’s justification.

After the prosecutor offered his race neutral explanations for the peremptory strikes, Jones’s attorney said he had not seen the juror nod to Jones’s brother and his brother was not available to confirm or deny the communication. Nevertheless, [382]*382Jones’s attorney did not ask for a chance to contact Jones’s brother, or otherwise present evidence of pretext for either .of the contested strikes. Jones also failed to object or request an opportunity to develop the record when the district court ruled on the ultimate issue of purposeful discrimination before Jones had offered any evidence of pretext. See United States v. Scott, 26 F.3d 1458, 1466 (8th Cir.1994). Jones’s failure to follow up on his Batson objection could have been reasonably construed by the district court as a concession that the prosecutor’s reasons were racially neutral. See id. Absent evidence from Jones that the offered explanations were pretexts for discrimination, the district court remained free to find the strikes were purposefully discriminatory, but instead believed the prosecutor’s explanations. See id. We must give this finding great deference and thus conclude the district court did not commit clear error in overruling Jones’s Batson objections. See id. at 1467; see also Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1321 (11th Cir.1999) (district court need not give a party raising a Batson objection the chance to rebut the reason expressed for the strike).

Jones also challenges his sentence, asserting the district court erroneously calculated the quantity of drugs attributable to him. We reverse a district court’s drug quantity finding for clear error and reverse only if we are definitely and firmly convinced that a mistake has been made after examining the entire record. See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir.1996). We are not definitely and firmly convinced a mistake has been made in this case.

In calculating Jones’s base offense level, the district court held Jones responsible for the equivalent of 43,485.8 kilograms of marijuana. Over 40,000 kilograms of this amount resulted from Jones’s sale of one ounce of crack cocaine per week between 1990 and 1992. As narrated in Jones’s presentence report (PSR), Frank Barrett made a pretrial statement to police that from 1990 to November 1992, Jones and Michael Jacques sold one to two ounces of crack cocaine per week for Terry Barrett from certain Barrett drug houses. Jones contested the amount of drugs attributed to him in the PSR, arguing he should only be held accountable for a small amount sold on one occasion to an undercover police officer. At Jones’s sentencing hearing, Detective James Svoboda, the principal investigator of the Barrett conspiracy, confirmed the PSR information, testifying Frank Barrett had told him during a pretrial interview that Jones sold one to two ounces of crack cocaine a week with Terry Barrett between 1989 and 1992, Jones sold between one and two ounces of PCP a week in 1993, and Jones sold one to two ounces of PCP a week after he was released from state prison in 1995. After the hearing, the district court overruled Jones’s objection and adopted the PSR in its entirety.

Jones protests that the detective’s testimony about Frank Barrett’s pretrial statements is hearsay. Hearsay evidence is admissible at sentencing if the evidence is sufficiently reliable, which depends on the particular circumstances of each case. See United States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir.1999). A law enforcement officer’s testimony about statements made by coconspirators may be sufficient to attribute drug quantities to a defendant. See id.; United States v. Kenyon,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Michael Selby
Eighth Circuit, 2021
United States v. Adetokunbo Adejumo
848 F.3d 868 (Eighth Circuit, 2017)
United States v. Isom
635 F.3d 904 (Seventh Circuit, 2011)
United States v. Muhammad Queadir Abdul-Ahad
381 F. App'x 635 (Eighth Circuit, 2010)
United States v. Bastian
603 F.3d 460 (Eighth Circuit, 2010)
United States v. Pratt
553 F.3d 1165 (Eighth Circuit, 2009)
Garcia-Garcia v. United States
532 F. Supp. 2d 356 (D. Puerto Rico, 2008)
United States v. Rolon-Ramos
502 F.3d 750 (Eighth Circuit, 2007)
United States v. Ken R. Fleck
Eighth Circuit, 2005
United States v. Robert C. Zimmerman
88 F. App'x 977 (Eighth Circuit, 2004)
United States v. Kenneth L. Harris
324 F.3d 602 (Eighth Circuit, 2003)
United States v. G. Nungaray-Beltran
59 F. App'x 909 (Eighth Circuit, 2003)
United States v. Fenaris Rashaun Braggs
317 F.3d 901 (Eighth Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
195 F.3d 379, 1999 U.S. App. LEXIS 27893, 1999 WL 977851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-l-jones-also-known-as-black-ca8-1999.